Donna G. v. Gloria G.
In the Matter of Donna G., Respondent, v. Gloria G.,
Appellant
153 A.D.2d 558; 544 N.Y.S.2d 215; 1989 N.Y. App. Div. LEXIS
10695
Bracken, J.P.,
Kooper, Spatt, Balletta and Rosenblatt, JJ., concur.
Ordered that the order is affirmed insofar
as appealed from, without costs or disbursements.
Christina D., who is 12 years old, has been living with the
respondent, her maternal grandmother, since she was an infant. Her mother, the
petitioner, who is currently married and living with her husband and
Christina's half sister, seeks custody of Christina. The instant custody
proceeding is one of several between the parties. The first was commenced in
1982.
The record supports a finding that the petitioner
surrendered custody of Christina to the respondent. There is no indication that
the petitioner showed any interest in the welfare of her daughter between the time that she relinquished custody until the time she first
commenced custody proceedings, a period of approximately three years.
Under [558/559] these circumstances, an inquiry must be made
as to whether the interests of Christina would best be served if her custody is
awarded to her mother or if it is to remain with her grandmother ( Matter of
Bennett v Jeffreys, 40 NY2d 543; see, Matter of Male
Infant L., 61 NY2d 420).
It is apparent that the Family Court gave the proper weight
to the evidence presented, used the appropriate determinative factors and
properly found that it would be in Christina's best interest to be in the
custody of her mother (see, Matter of Louise E.S. v W. Stephen S., 64 NY2d 946;
Eschbach v Eschbach, 56
NY2d 167). Although not determinative, it is important to note that Christina
expressed the clear, unequivocal and uncoerced desire
to be with her mother, a factor that is some indication of [215/216] what is in the child's best interest (see, Eschbach v Eschbach, 56 NY2d 167,
173, supra). Moreover, it is apparent that Christina's emotional and
intellectual development would best be served by her residence in the
relatively tranquil home environment of her mother and stepfather (see, Matter
of Louise E.S. v W. Stephen S., 64 NY2d 946, 947, supra). In particular, we
note that the child's psychotherapist, called as a witness by the grandmother,
testified that the grandmother's household was "particularly
stressful". These factors, when considered in the totality of the
circumstances of this case, support the conclusion that custody with the
petitioner would be in the best interest of Christina (see, Friederwitzer
v Friederwitzer, 55 NY2d 89). Accordingly, the
determination of the Family Court should not be disturbed.